Author: redheadedlaw

What Is Deemed Income In Child Support Orders

What is Deemed Income in Texas Child Support Orders?

Written by redheadedlaw on February 22, 2021. Posted in Child Support, Deemed Income.

Anyone who has watched “Dateline” may already be familiar with the term “imputed income,” which in Texas is referred to as “deemed income.” These crime drama shows often feature someone (usually the husband) who is trying to avoid financial obligations to his or her children. But what is deemed income, and how does a court decide that this calculation is lawful and appropriate in a family law setting?

First – Some Important Definitions

Deemed income is the amount of income a court uses in child support calculations when it decides, for any variety of reasons, that using a parent’s current reported income would be inappropriate.

To understand how this works, it is first important to start at the beginning. How is child support calculated in Texas? Child support is based on the obligor’s net resources (an obligor is a person obligated to pay child support). The Texas Family Code for determining net resources can be summarized as including:

100 percent of all wage/salary and other compensation for personal services (including commissions, overtime pay, tips, and bonuses)
All interest, dividends, and royalty income
All income from self-employment
Any net rental income profit
Any other income being received (severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, etc.)

Resources not considered for including:

The return of principal or capital
Amounts owed such as accounts receivable
Payments for the foster care of a child
Benefits paid from federal public assistance programs

The court will deduct certain items from these resources to determine the net resources available for child support, such as social security/state/federal income taxes, the cost of medical insurance for the child, non-discretionary retirement plan contributions (in some cases) and union dues. This is all standard practice if the obligor is employed, but if self-employed, there may be gray areas to negotiate.

If the obligor is not employed or has income which is significantly less than what he or she earned previously (say, the last six months or year), there may be a claim that the obligor is intentionally unemployed or underemployed. The person seeking child support may request that the Court base child support on something other than the obligor’s actual reported “net income.”

What is Deemed Income?

The definition of deemed income can be summarized as follows:

When appropriate, the net resources calculation may compel the court to assign additional income to an obligor attributable to assets that do not currently produce income. The court will consider if non-income producing assets should be liquidated, or if market conditions would preclude such action. The court may also assign a reasonable amount of deemed income to income-producing assets that have been voluntarily transferred or on which earnings have intentionally been reduced.

What Factors are Reviewed to Determine Deemed Income?

What factors will the court look at to decide if there is deemed income (e.g., the obligor is intentionally underemployed or unemployed)? This determination is based on the “child’s best interest” standard and the statutes quoted above, along with the answers to a number of questions pertaining to the parent who will be responsible for the support. These include:

The parent’s educational level
Past earning history
Employment history
Current employment opportunities in the area
Was the lost job due to a layoff
Did the business close or get sold
Is the parent’s job commission-based
Has the parent continued to seek work

Avoiding an Obligation

The primary reason for under-reporting income to a family court (either by false statements or by taking a lower-paying job) is to lower child support obligations. Two examples are shown below:

A husband quits his well-paying job prior to a court date so he can truthfully say he is unemployed. The same intent would be behind someone leaving a good job to take a more menial position at less pay. If a court determines that a parent is purposely earning less income than their skills and experience would normally dictate, it can examine how much similarly qualified people earn in the area and base support on the higher figure. This would also provide strong motivation for the paying parent to find a suitable job. Of course, there can be mitigating circumstances in these cases. Perhaps one parent left a job to care for the child or an aging relative, or the parent learned of a downsizing and took some severance while it was available. Courts will look into why an employment situation has changed, and consider all the facts surrounding the reduction in reported income.

Some states don’t “deem” income to a parent who is already caring for young or special needs children. A parent attending a university or trade school may also avoid having income deemed, but once school/training is over, their support responsibility will likely increase due to their increased marketability to employers.

Challenging a Deemed Income Ruling

In order to challenge a deemed income determination, a parent will usually have to supply proof of their circumstances. For example, if they are currently looking for a job, they may have to prove they are contracting with a job search agency and completed state-required unemployment registrations. Courts may also request proof that the parent has an up-to-date resume and has current profiles with job search sites like Indeed or Glassdoor. LinkedIn would also be reviewed – why would anyone seriously looking for work not have a current profile on LinkedIn? If all of these factors check out, it is likely the court will consider a lower support amount, at least temporarily until more gainful employment is obtained. However, if any of the following are discovered, the parent will be in trouble with the court (and owe more support).

Evidence showing the parent has not consistently sought employment
Documentation that the parent voluntarily and intentionally quit their job
Employer statements that the parent turned down a promotion, new job or bonus
Any evidence showing the parent delaying receipt of a bonus
Witness statements (or social media posts) showing intent to avoid support

In a recent Texas Appeals Court case, the Court affirmed the lower court ruling that the father was intentionally unemployed or underemployed. In this case, the difference in income was significant and the father did not provide evidence of a job search. Slightly different facts could lead to a different result.

Deemed Income Can Be A Gray Area

If a person seeking child support is alleging intentional underemployment or unemployment of the obligor, the burden of proof is on the person seeking the higher child support. As you can see, the topic of whether deemed income will be calculated contains a lot “ifs” and “buts.” However, the bottom line is this – during the past year, COVID-19 has had a profound impact on business activity, and many people lost their jobs or had reduced income. To be clear, a judge won’t impute income just because a parent should be earning more, only if the evidence shows that they are choosing to do so. If you have any questions on this or any other family law topic, feel free to contact Essex Law and schedule a virtual consultation.

10 Fun Things to do with the Family this Christmas Season.

Written by redheadedlaw on December 15, 2020. Posted in Christmas, Holiday Season.

We can all feel it – even though the holidays are upon us, it is understandable that travel stress and economic uncertainty have disrupted traditional celebrations. Zooms and Skypes can only replace a part of what we’re missing, but what can be done? I’ve never experienced anything like this either, but here are 10 ideas on how to add a little light to this unprecedented moment in time.

Get outside – There really is scientific benefit in getting outside and feeling the sunlight. It improves sleep, reduces stress and actually helps keep you from gaining weight (not a bad thing when culinary temptations abound). But even more importantly, it strengthens the immune system and helps prevent depression. If you have a fire pit, light it up and send the photos to your jealous friends in Minnesota.
Take a drive and see the lights – This is a free activity (except for gas), and it can be really fun. If in your normal early evening travels you see an impressive display, check out the neighborhood (birds of a feather, right?). Or, check online, since some areas post where to see the best shows. The Woodlands offers this link, and here are some ideas for Houston. There are also a number of paid alternatives as well, like The Light Park. Jump in the car with some hot chocolate and popcorn and go on a light hunt!
An oldie but goodie (Secret Santa) – It’s almost mid-December, but if the economic slowdown has impacted you, Secret Santa might help. Pick a family member in secret and everyone gets to buy or create a gift for a different person. No one will know what’s coming, and possibly this anticipation will at least add some excitement to an otherwise gray period.
Build a gingerbread house – These are very inexpensive, and really nice kits can be found at stores like T.J. Maxx and Kroger’s. Everyone can join in and help build one, or maybe you make it a competition and have the kids against the parents, or some other combination? Either way, it’s a great way to do something constructive (that you get to eat later).
Play Christmas charades – This can be fun anytime, but especially now when a lot of normal activities are shut down, have reduced capacity, or just don’t feel safe to do. You can buy an “official” Christmas charades game at (say it with me) Amazon, or you can easily cut up some paper and write different Christmas topics to act out. This latter homemade version might turn out to be the most fun!
Donate items – Here’s a way to give back to the community at a time when the community really needs some giving back. Why not do your New Year’s or spring cleaning now? If you are like me, the amount of useful items you will uncover will be quite a shock. And I guarantee that Goodwill, the Salvation Army, Interfaith and others will be so grateful.
Have an ugly sweater contest – Ok, so why would anyone want to make an ugly sweater on purpose? Because it’s an indoor, low-cost activity where everyone can participate. Pull out some old shirts, sweaters and/or pajamas (that you found while doing idea 6 above), and then draw, cut up, stitch and create! The winner gets a prize of their choosing (or whatever you decide is an appropriate prize). The prize doesn’t have to be an item – how about a coupon book waiving (for example) dishwashing duty for the week?
Make holiday cards – If you believe the news, it might be too late to make actual cards at this point in the month. But fear not – the internet to the rescue! Hallmark, American Greetings, Blue Mountain and more all offer e-cards that can be created and sent in minutes. Want to send a video message instead? Elfyourself, Jibjab and many others can make you a star (at least among your family and friends).
Add decorations to your home or yard – While you may already be happy with the looks of your yard, why not step it up? If there are any extra lights and ornaments lying around, why not decorate a second tree (or a third)? Or, check your yard for a tree, a bush, or shrub that might make a holiday statement and decorate it. If you don’t have any yard forest to spare, decorate for a neighbor instead (probably should ask first to avoid grinch-like encounters).
Surprise the neighbors – In the old days (last year and all previous years), it was a simple matter. Bake some sugar cookies, sprinkle them with green and red sugar, wrap in colored cellophane (from the Dollar Store!), tie with ribbon and deliver to your neighbors. Now, anything homemade is potentially toxic, so you have to be a bit more creative. Check out the seasonal sections at Wal-Mart or Target for inexpensive items (like cocoa bombs) and make like Santa.

These are all easy, free or inexpensive activities you can do with your families, and all are Dr. Fauci-approved. It is important to seek or create something positive in the midst of everything negative. I have found that by spreading joy I am joyful. I believe you will feel the same way.

Which parent decides on school attendance during pandemics?

Written by redheadedlaw on November 30, 2020. Posted in Child Custody, COVID-19, School Attendance.

When thinking about the law, one of the most important considerations is how legal decisions are made. Many times, courts are asked to rule about something that has already happened but has no supporting body of law (i.e. no precedents). Twenty-five years ago, social media was brand new and as it gained influence, there were disagreements leading to new litigation. Today, laws pertaining to social media are fairly well established. Enter COVID-19. This has huge implications in a family law setting – today let’s consider who decides if a child can return to school or not during a global pandemic.

The devil is in the details (unless there aren’t any)

Many custody agreements are written in broad terms, but some contain a level of detail that would put the Internal Revenue Code to shame. I am confident in saying 99.99% of pre-pandemic custody agreements never considered how to settle a disagreement about a child attending school. Prior to March of 2020, there was nothing to discuss – kids either went to school or were home-schooled. Now everything has changed. Consider this real-life scenario:

A divorced couple with an 11-year old son have a divorce decree stating parents will jointly make education decisions, even though the child lives with his mother. There was nothing in the decree about what would happen if they disagreed, but then came COVID-19. At first, remote learning was mandatory so there were no other options, but then the state relaxed its rules. Children now have the option of in-person attendance or remaining remote. The mother, who had witnessed months of Zoom classes, wasn’t convinced it was working and sent the youngster back to school. The father found out, drove to the school and took the child home, stating that the chance of infection was far greater in school and he was unwilling to take the risk. In the end, the school decided that the language in the divorce decree gave the mother the right to decide. If this had been litigated, the outcome would not have been the same because the school’s interpretation would not have been upheld by a judge.

How to head off school conflicts

Some divorced parents might agree to letting the school be the final arbiter of whether their child attends in person or remotely. One problem I see with this transfer of authority is a judge is unlikely to uphold a school’s decision if the other parent challenges it. To avoid needless litigation, parenting orders will need to be much more specific in the post COVID-19 world. These will have to spell out exactly what rights does each parent have pertaining to the education of children. Questions like which school a child attends, who is allowed to pick them up from school, and who can choose remote vs. in-person learning will have to be decided and recorded in advance. There haven’t been a lot of these cases litigated yet, but there will be unless both parents think ahead.

Texas law facilitates the specifying of family obligations

Virtually no pre COVID-19 divorce decrees mentioned how to handle school attendance in a pandemic. Fortunately, Texas law is sufficiently flexible to direct specific responsibilities to one parent or the other. Texas Family Code 153.071 allows the court, or parental agreement, for the exercise of certain parental rights and duties by either each parent independently, by joint parental agreement, or solely by one parent. Court orders can go further into the education process. For example, one parent could have sole responsibility to decide on such things as special education services and counseling. These orders could also pre-determine what happens if the parents disagree. For example, the parents can agree to make joint decisions and if there is a dispute, the court order will contain a tiebreaker, such as the school counselor for education decisions. If you are in the same situation as my example parents discussed earlier (or are just planning ahead to avoid future problems), a modification of your existing decree will be required. To successfully modify any court order (even if both parties agree), you will definitely need expert representation.

A real can of worms

If you are contemplating or in the process of seeking a divorce, I encourage you to think about the dramatic impact of COVID-19 on custody issues. We’ve been talking about school attendance, but what about visitation, or previously planned trips? If a parent has to cancel a trip due to COVID-19, does he/she get to make it up later or is the opportunity lost forever? What if a child is with one parent when he/she received a positive test result? What if that parent is not the primary caregiver? You can see how this can get messy real quickly.

If you have any questions on existing or future custody orders, give my office a call. The pandemic opened a real can of worms, and we can help you make sense of it all.

Getting down to (online) business

Written by redheadedlaw on March 10, 2020. Posted in Facetime, Online Meeting, Skype.

Many of us spend the day jumping from one family or work assignment to the next. And just like mail at the post office, it never stops – the next morning we get up and are faced with another set of duties. I understand it can be very difficult to put aside a block of time for any meeting, particularly a potentially emotional consultation about family legal matters. I’ve practiced for over 30 years, and have learned that everything I can do to make this process easier leads to a better result for my clients. Business is conducted every day with the touch of a button (or mouse), including family legal services. I have been meeting online with clients all over the country since 2015, and today I want to highlight online appointments as a valuable option offered by the Essex Law Firm.

Family law is personal

Without a doubt, the vast majority of cases I resolve pertain to highly personal matters. Wills, adoption, child custody, divorce – there is very little in this world that is more personal than your heirs, kids or marriage. For many years law was a face-to-face interaction, because entrusting a stranger with such emotionally charged topics required you to first develop a relationship. As technology made it increasingly convenient to “meet” without leaving your home or office, the only impediment to virtual appointments became the two parties. Will you feel comfortable relaying your story to me (and will I be comfortable receiving it and offering advice) without sitting in some dark, wood-paneled office? Yes, because times have changed.

Building the relationship online

A successful 21st century client-attorney relationship is still a relationship, but it can now develop in different ways. All of us (especially my younger clients) are 100% capable of dialing a phone or initiating a video conference via FaceTime or Skype. And while it may be counter-intuitive, my experience suggests a virtual relationship is just as valuable as any developed in the traditional face-to-face manner. I have enthusiastically offered online appointments for years – here are a few reasons why these are a win for all:

Less disruption to routines
Let’s face it, when any of us have a 10 a.m. appointment for anything, we have to count backwards and determine when we have to start getting ready. This means where are the kids going to be, who walks the dog, what kind of traffic can I expect, what is the weather, etc, etc. Then once the meeting is over you have to drive back to your home or office. This mayhem can be avoided.
Less wasted time
I’m referring to the time wasted once you arrive. We try to hurry this process along, but there are still steps to follow. You will check in, sit briefly in a waiting room, be offered water and coffee and eventually be led to a conference room. But there is wasted time on my side also – I have to be sure the room is prepared and any confidential papers are put away. I’ll wait for the call from reception before I either greet you in the lobby or in the conference room.
Fewer distractions
When I walk into a lobby or an office, I’m taking in my new surroundings. Is the room well-appointed? Does the carpet have furniture marks (and if so, why are you moving your furniture around?). If you are meeting with someone for any reason (besides critiquing their decorating talents), this is counterproductive. But I’m human and I do it anyway, and I’m sure you all do it too when you could be thinking of the issues at hand.
Reduced missed appointments and reschedulings
This is the bottom line – it’s so much easier to arrange for a 30- or 60-minute Skype or Facetime call in your home than to make the arrangements to drive across town, park and have an office visit. For this reason, clients are much less likely to cancel, reschedule or just be a no-show. And this is the same for me. If I’m (for example) delayed in court, I can always find a conference room and be fully prepared for your call. These kind of meetings also enable me to be more precise with my scheduling so we can get down to business sooner.

A better, faster, more cost-effective result

The idea of meeting with me and discussing legal matters without sitting in my office may seem strange. I assure you, it’s not. We will get down to business sooner, get more done on each call and generally can expect a faster conclusion. And in my profession, a faster conclusion is always more cost-effective for you. You can book your online appointment easily on my website within minutes. If you haven’t tried it, you’ll be surprised how easy and secure (and productive!) online meetings can be.

Merry Christmas 2019

Written by redheadedlaw on December 20, 2019. Posted in Uncategorized.

At the Essex Law Firm, we want to wish you a Happy Holiday season, and a very Merry Christmas. We hope you enjoy family, friends, and all the goodies Santa brings you. We want to thank all of our clients this past year, and in the coming months if you or a loved one is in need of any family law assistance, please don’t hesitate to contact us.

How to get through the holiday spousal blues

Written by redheadedlaw on November 20, 2019. Posted in Marriage, Thanksgiving.

As far as holidays go, Thanksgiving is usually pretty easy to take. There are no gifts to buy, no songs you have to learn, and the main activity is eating and shaking off tryptophan-induced slumber during the afternoon football game. For couples, the main stress producer will likely be the number of guests you are expecting. But what if it’s your spouse you want to see trussed up in a roasting bag? This can turn your holiday into a tedious, week-long ordeal that is uncomfortable for all concerned. What can couples having marital problems do to make this family event go smoothly?

First – how bad is it?

This is important because one thing you can absolutely guarantee a holiday will do (if you let it) is magnify existing tensions. So you have to ask yourself, “Am I really no longer interested in my marriage or do I just need a break?” The endless damp towels on the bathroom floor are an annoyance on most days, but when company is present (especially judgmental in-laws – you know who you are) this becomes a titanic struggle for the future of mankind. This is particularly true for women, who have been unfairly conditioned for generations (yes, even now) that their worth is determined by how well-oiled their holiday machine runs. On the other hand, men (perhaps due to observing their fathers and grandfathers) often believe their only responsibility to the holiday juggernaut is to show up, be loud and scratch themselves with precision.

Maybe the answer isn’t yet clear

OK, I would suggest to you that if the answer to “how bad is it?” doesn’t immediately cause a spike in blood pressure, there is hope for both of your futures together. So now we are back to the original question – how do you get through a potentially stressful holiday situation? In my experience, communication is key, followed by expectation and cooperation. It can work like this – sit down with your spouse during a quiet moment and acknowledge that while there are unresolved issues between you, a holiday is coming up that will require hosting family and entertaining people of different ages. Then review what you both see as the different chores and events that will need to be handled during the visit. This is the communication part that lays the groundwork for all that follows because it identifies possible pain points. Following this discussion, you both will have a good idea of what is concerning (and often frightening) to the other. And now everything is less scary because it’s been defined and no longer a big mystery.

Working together

With the issues identified, we move on to expectation. You can now mutually assign tasks with agreement on how they will be completed and when. Who will be walking the dog that week? Who greets the guests at the door? Who takes drink orders and clears the table? Don’t be afraid to play to each others’ strengths when assigning tasks. For example, while the husband may be willing to learn how to iron napkins, his time may be better spent elsewhere (like frying the turkey). Getting the division of labor handled should eliminate a great deal of stress because each person has assigned tasks and the expectation that everything else will be handled by the other. This leads to cooperation, which can be the most sensitive part. Here’s your first quiz – if you see that your spouse is not walking the dog on time, do you:

Whisper that the dog probably needs to go out very soon
Remind him/her of what the dog will do without time outside
Wait until dinner is served and wrap the leash around his/her neck

Remember, you both agreed to cooperate to get through this holiday, so gentle reminders may be needed. With guests in the house and non-standard meals being prepared, there will be a certain level of unavoidable chaos to work through. Each of you will be expected (by the other) to handle the assigned tasks on time and be flexible.

What if it doesn’t work?

Disasters can happen, but it’s up to you both to determine their significance. So your son-in-law’s pit bull became romantically involved with your new couch – who could have seen that coming, right? Maybe Uncle Ricky got so inebriated that he passed out under the table. It’s up to you to determine whether these incidents become part of family lore or another brick through the window of your relationship. If after the holiday you are still unhappy and unsatisfied with your spouse, feel free to give my office a call. I can help you discuss the next steps.

Credit Card Debt after Death

Written by redheadedlaw on September 9, 2019. Posted in Death, Debt.

‘Til death do us part?

Credit card debt can live on after a loved one’s passing – here’s what to do

We can all agree that families have plenty to deal with following the death of a member. There are funeral plans, mortgages, taxes and insurance issues, upkeep on properties, investment inventories, Social Security regulations, and this is all in addition to the emotional toll of the loss. Credit cards are probably at the bottom of the list of immediate concerns. But be careful – the road to managing and resolving the credit card debt of a deceased family member is full of potholes. Here are a few ideas on how to navigate this sensitive time while avoiding legal and moral risk.

#1 Define the scope

How many outstanding credit cards exist, and what are the current balances? If only a few hundred dollars are owed to one or more companies, then that is a far different situation compared to if someone was maxed out on several credit cards. One question to ask is this – will the estate be large enough to easily pay these balances out of current cash, or will asset sales be needed?

#2 Notify the credit card companies

Notifying the banks holding the debt will address several potential issues. First, the accounts will likely be frozen or closed, preventing any further use by other family members. Second, freezing the accounts will prevent the possibility of fraud (some shady folks use death notices for this purpose). To do this, you will need to obtain a dozen or so death certificates early in this process, as the companies will want these as proof after being notified. It is best to send these by certified mail so you can prove receipt.

#3 Notify the three credit bureaus

Once you have locked up existing accounts, you will need to prevent any new accounts from being opened in the name of the deceased. Call Equifax, Experian and TransUnion and request they flag the person as deceased, so no one will ever be able to open new credit in their name.

So what about those outstanding balances?

This is where it can get a little tricky. Many parents and spouses add others to their credit accounts as “authorized users.” Generally, authorized users are never liable for the balances owed on the card(s). However, sometimes those same individuals are added as joint accountholders – in this case, the debt is usually viewed as being owed by both accountholders. In this case, you could be on the hook for the whole balance even if none of the charges benefitted you in any way. It’s also possible you were never asked about being a joint owner on the account (yet another good reason to check your credit reports annually, as new accounts would be obvious).

It’s possible that you might get the estate to pay this debt for you (as a joint owner), but under the law, they have no obligation to do so.

A few other common traps to avoid

It may be tempting to use the card of your deceased relative for small purchases, even items related to the funeral, home repairs or expenses related to the deceased. Don’t do it. Even using the card as an authorized user can be construed as fraud. In the eyes of the credit card company, the rules changed with the death of the “primary” user. That person’s credit data was used to offer credit terms and continue the credit relationship – once that person is no longer part of the calculation the company would need to reevaluate the terms.

The flip side of the situation above is if you, as the authorized user, decided to pay the outstanding credit card balance with the expectation of being reimbursed by the estate. Again, don’t do it. Credit card debt is unsecured, and the card issuers are at the end of the line that forms to receive disbursements from the estate. If you pay off a credit card balance for someone else, then you become the new end of the line.

And keep an eye out for auto-payments. It’s very convenient to set up these payments to avoid credit card late fees, etc, but after the account owner passes these need to be stopped. Chances are, once you alert the company (see #2) they will stop these, but you should be sure.

Beneficiaries at risk

Keep in mind that with the passing of a family member, there may be the expectation among the related survivors that certain funds or assets will be distributed among them. Anyone that makes improper financial decisions pertaining to the estate is at moral and legal risk. These decisions could be viewed by others as morally wrong or self-serving, and cause a break in the family unit. Or even worse, these decisions could be viewed as fraud and grounds for a suit to recover the funds for the estate. Every dollar that is seen as misappropriated from the estate is one less dollar for beneficiaries and creditors, so you can see how emotions could take over in this situation.

If you have any questions about your legal obligations following the passing of a family member, please feel free to contact my office for an appointment.

Does A Family Have To Sell Their Home In A Divorce

Does the family home have to be sold during a divorce?

Written by redheadedlaw on April 17, 2019. Posted in Divorce, Property Division, Real Estate.

The short answer is, no it does not have to be sold and is usually not sold.

The discussion about the family home can be an emotional one for a divorcing couple. There are many considerations and arguments for and against selling, but what happens if the parties cannot reach an agreement? Generally speaking, in Texas, if the home was purchased during the marriage, it is community property (with a few exceptions), and the court divides the EQUITY (not the home itself). Each spouse may have a community property interest, but the question of whether the home must be sold is not cut and dry. Let’s go into some detail on how these situations often play out.

What is Community Property?

Texas is a community property state, so, with some exceptions, all property acquired by either spouse during the marriage is known as community property. It doesn’t matter who is on the title or deed. For example, a home (or truck, or boat, etc.) can be titled in the name of one spouse, but in the eyes of the court, if it was obtained during the marriage it is community property. Property obtained prior to the marriage, on the other hand, or property that was inherited or received as a gift, is separate property. Unlike community property, which the court has the right to divide “in a just and right manner,” separate property is protected constitutionally and the court cannot divide it. Note that all property in the community estate is presumed to be community, and the person claiming property that is separate has the burden of proof on that issue.

If the divorcing parties are unable to reach an agreement on the division of the family residence, the general rule is that the house goes with the kids. The person who is the primary parent of the children will generally end up with the right of possession of the house, barring some unusual circumstances such as the primary parent is not employed or obviously cannot afford it. That goes along with the general rule that judges like to give children stability. If the choice is between one parent with whom the children are living and the other parent, the kids win. That does not mean that the other parent loses his or her interest in the real property. For spouses without children, other issues may determine what the court does, including whether one of the parents has minor stepchildren living in the home.

That brings up the issue of how real property is actually divided. It is the equity, the fair market value less the amount owed, that the court divides. If there is equity, the court will generally award the real property to the one with whom the kids are living and order that parent to pay the other person, in some form or fashion, for his or her share of the equity. There are many variations on how this is done and here at Essex Law we work with our client to propose what is most equitable and efficient and our aim is to convince the judge of that if the parties cannot agree

Obviously, this is not the recommended way to settle a divorce, as arguing about everything increases the length of the proceedings, increases the cost and may also reduce the proceeds generated by the sale(s). So how does this relate to the sale of the family home?

To Sell or Not to Sell

The bottom line is this — the spouses can agree to almost any division of assets as long as it is moral and legal (for example, it can’t place children at risk). One spouse can easily relinquish ownership of his/her share in the home by executing the proper warranty deed. Where problems often arise is when the home is the only large marital asset. Let’s say that a couple’s home currently has $100,000 in equity. If there aren’t $100,000 in other marital assets available to balance against this home equity, the relinquishing party has to be financially able to refinance or borrow from family or find some other way to compensate the other party. However, if, for example, the couple has $200,000 (or more) in total marital assets, an agreement could be reached where one spouse stays in the home (with any children) and accepts the $100,000 in home equity in return for transferring the other $100,000 to the other spouse. If one spouse has considerably greater assets (for example, vested stock options or retirement assets) than the other, an agreement could be reached where the wealthier spouse transfers all home equity and a portion of his/her existing assets to the other. In this scenario, the marital property is split in a just and right manner and further arguing and expense is avoided.

It’s a Numbers Game

So as you can see, the question of whether the family home will have to be sold as the result of a divorce is a question of numbers. Other wrinkles can arise — for example, what if one spouse used inherited money for the down payment on the family home? Even if the couple can reach a deal to transfer the property, the person who is relinquishing has to realize that his or her name will remain on the mortgage note until the property is divided or sold. Period. The judge cannot change that. The lawyer cannot change that. An agreement between the parties cannot change that. The lender is the only entity through which it can be changed, and in over 31 years of practicing law, I have never seen a lender release a party from a mortgage. That leaves the relinquishing party at risk for late payments by the other party post-divorce affecting the credit of the relinquishing party for years down the road. At Essex Law, we work with a party who is not remaining in the home to insure that the divorce decree properly reflects any agreement for how he or she will receive the agreed-upon share of the equity, and also to protect the credit of that person. It takes creativity as well as knowledge, and the patience to educate the client, to be sure no nasty surprises await in the future.

Why Am I Paying Child Support With A Joint Custody Arrangement

Why am I Paying Child Support in a Joint Custody Arrangement?

Written by redheadedlaw on December 26, 2018. Posted in Child Custody, Divorce, Money.

Why am I paying child support in a joint custody arrangement? This question comes up frequently in divorce negotiations, and it’s a good one.

In Texas, the term “joint custody” is often misunderstood by non-lawyers. In a divorce, parentage, or other action regarding children, each parent is given the label “joint managing conservator” except in extreme instances such as child neglect or abuse. The rights and duties of a parent and the possession and access of each parent are what truly determines a “joint custody” arrangement.

In theory, if parents are sharing possession and access equally and are also sharing the rights and duties, shouldn’t all expenses incurred be handled equally as well?

First of all, be aware that in Texas, at least in Harris, Montgomery, and Ft. Bend counties, judges seldom order 50-50 possession. I have seen a judge do that only once in the 31 years I have been practicing law, and when I polled my fellow attorneys I got a similar response. Judges are of the opinion that it is extremely hard to maintain a 50-50 possession after a divorce or final court order. Parents move, remarry, good intentions evaporate, and most judges are of the opinion that if they order 50-50, a parent will be facing litigation again within a couple of years. Judges also are extremely reluctant to enter a “no child support” order. If parents enter into a mediated settlement agreement for 50-50 possession and/or no child support, however, a judge’s hands are tied as that agreement is binding on both the parents and the judge.

For those parents considering why they would agree to pay child support in a 50-50 arrangement or agree to accept a “no child support” order, the answer is, that in the real world, two divorcing parties are rarely equal. They have different jobs, different work hours, different work histories, education and skills. Also, one will often stay in the marital home, requiring the other to find new housing. And most importantly, one will likely earn more than the other (often considerably more) over the short and long term.

So the determination that child support is warranted should be based not only on possession and access, but on the resources and potential earning power of each party. And let’s face it, it is pretty unlikely that even in a 50/50 custody agreement, children will actually split their time equally between parents. It’s not possible, but more importantly, it’s not practical either. The majority of kids impacted by custody agreements are still in school, and school districts are not easily circumvented. So chances are, school-age children will need to live in the district they attend. This guarantees a certain amount of inequality in residence, and also in expenses. The parent handling the school issues will undoubtably pay numerous fees, buy supplies and subscriptions and be responsible for the day to day existence of the kids. So lunches, snacks, gas, etc. will usually wind up falling primarily on one parent.

Also, kids inevitably incur surprise expenses, some of them quite large. While a few of these (orthodontia, etc) are somewhat predictable and can be covered in the settlement agreement, others are surprises, or the amounts tend to vary widely. For the rare hypothetical couple with joint custody and no child support, they might agree to split those expenses down the middle. For the parent with part time job, splitting the $350 lab fee or $500 cost for a band trip might be a hardship. This is where child support comes in.

In divorce cases, courts are looking to guarantee (as much as possible) the “best interest” of the children. This is why the concept of “two halves make a whole” is so important. By assuring that the appropriate resources are available in the appropriate amounts, kids of divorced parents can grow up with many of the same experiences as their peers in intact family units. This is also why divorce judgments are not (except in egregious cases) punitive – it usually does not serve the long term interests of the child if one parent is bankrupted by a divorce judgment.

If you have any questions on child support or other family law matters, please contact the Essex Law Firm for an appointment.

When Your Ex Comes Back from the Dead

Written by redheadedlaw on October 29, 2018. Posted in Divorce, Finances, Privacy, Social Media.

Considering all the scary things that could happen during and after a divorce, most of us would be most happy if the ex simply went poof and disappeared. And why not? Aside from financial obligations and scheduling activities for the little goblins, you probably aren’t too interested in maintaining friendly relations at this point. To test your resolve, here is an easy quiz – please choose the correct answer.

Since the successful conclusion of your divorce, the punishment you would most likely seek for your ex would be:

Taking a bath in a bubbling vat of Sriracha sauce,
Performing 1,000 push-ups over a swarming nest of fire ants, or,
Hanging upside down in a dank, humid cave trying to learn the bat alphabet.

The correct answer is yes. In that order.

Since everyone aced the quiz, it’s safe to say that having as little unnecessary contact as possible with an ex-spouse is a highly desirable outcome. And let’s face it, most of the time the feelings are mutual. No one goes through the time, expense and anguish of a divorce looking for more quality time with the ex.

They’re baaaaaack

But what if the unexpected happens? Maybe you’re at a neighborhood Halloween party, rocking your latest Dracula costume, and out of the corner of your eye, you spot something. Familiar yet frightening, casual yet caddish, holding a beer at a ridiculously rakish angle – could it be? After a few minutes of scaracter observation, you know that sarcastic, smothering, sanctimonious succubus is your ex. But why show up here? Particularly when he/she is way behind on child support payments and has taken every opportunity to throw stones your way.

Idle ex-spouses = trouble

This is profound, so get ready – divorces create animosity. This shouldn’t be surprising, considering one spouse is suing the other. And you can usually see this problem escalating. Does your ex slip little insults into your phone calls or emails? Are plans changed at the last minute, always to your detriment? Is information you divulged as a courtesy later used against you? If this sounds familiar, you can be sure that some of your former friends are getting an earful of post-divorce propaganda – either in person, via social media, through third parties – by any means possible. There is an old saying that a bored dog is a bad dog. If your ex has time on his/her hands, scheming will likely result.

What can be done?

This kind of behavior (subtle harassment) usually isn’t specifically forbidden in a divorce settlement. Even if it is, these actions can be tough to prove. So start with your agreement – does it prohibit bad-mouthing you to your kids? To your employer? To your friends and other family. Even if it isn’t specific, it may be possible to initiate a modest action (like a letter) that will put your ex on notice. This will usually cure the late child support problem as well. Here’s another tip – nature abhors a vacuum. If you aren’t talking to your family and friends, you are providing your ex with a forum to make mischief. Your family might be wondering why you don’t call, and then bang – your ex fills in that thought with a spectacular fib that they might start believing over time. Be sure your friends and family hear your side of the story early and often.

Use the “hide and write” method

An effective strategy to counter an ex spouse, in case of future litigation, is to hide personal information, and to write (record in a journal) what snide actions they are performing. For example, block your ex on all social media, along with anyone else who might pass info behind enemy lines (hide), but do record what you know to be true, like your ex’s overseas trip with a “friend” (write). Do not reveal improvements made to your new home (hide), but feel free to record that new car your ex just acquired (write). Never discuss anything pertaining to your current relationship (hide), but recording the shortcomings of your ex’s dating life is fair game (write). A good rule of thumb is this – if you want to brag about something or are upset about something, it probably shouldn’t be divulged (hide), but anything your ex brags or frets over is fair game (write). When you are recording him or her, don’t let them know you are doing so, and don’t use any methods that violate privacy laws (which includes accessing email, social media, or bank accounts, even if you still know the passwords). Only record what is easily said or made available.

Emotions can certainly run hot during and after a divorce. Always consider your agreement before discussing any issues concerning your ex. You don’t want to do anything that makes you look petty, mean or (worst of all) unstable if the worst happens and you wind up before a judge again. If you have any questions on how to prevent such harassment before, during and after a divorce, please contact my office and set up a consultation.